Scooter scandal: Mbengashe cleared of dishonesty, but guilty of negligence
Former Eastern Cape health department head Dr Thobile Mbengashe has been cleared of dishonesty and favouring Qonce motorcycle supplier Fabkomp in the controversial R10.14m tender for 100 mobile clinics, which was stopped by the Special Tribunal, but found guilty of negligence.
Mbengashe was slated for his nonchalance throughout the scooter tender process, allowing “clear” and “outrageous” meddling in operational issues by former health MEC Sindiswa Gomba.
The findings were handed down at the end of a disciplinary inquiry brought against Mbengashe by premier Oscar Mabuyane. Mbengashe has been Mabuyane’s special adviser since vacating his health head of department (HOD) post in September 2020, midway through his second five-year contract.
He was also cleared of fruitless and wasteful expenditure because Fabkomp did not deliver any scooters, nor did the health department disburse any funds.
But inquiry chair advocate Peter Kroon SC found Mbengashe guilty of negligence for a series of decisions — wrongly regarding the scooter procurement as an emergency, allowing for a truncated five-day bid period, and failing to ensure the tender was advertised in the Government Tender Bulletin and e-portal.
Mbengashe approved a truncated five-day tender timeline based on his apparent belief that the motorcycles were scarce and that there was only one supplier in the country, a decision which Kroon found made no sense, as a longer timeframe would have been rational to ensure the tender was advertised to a wider audience of suppliers.
The EC health department used the promulgation of legitimate emergency regulations to deal with the Covid-19 pandemic to rush through the procurement of 100 motorcycles with sidecars to be used as mobile clinics. A whistle-blower’s disclosure led the Special Investigating Unit to bring an urgent interdict application to the tribunal, which issued a final order in May 2021 setting aside the tender.
Gomba was fired as part of corrective action taken by Mabuyane in response to the SIU findings.
Kroon found Gomba had “expressed an interest, if not a desire” for the scooters to be procured from the outset and long before the onset of the pandemic.
At a “kickoff” meeting she chaired on December 13 2019, she said the scooters should be displayed at a June 2020 launch to be attended by then health minister Zweli Mkhize.
Though the final approved tender was for 100 scooters, notes of the meeting stated 100 units each of motorcycle ambulances and motorcycle clinics would be purchased.
Mbengashe testified that Gomba had not consulted him ahead of the meeting, effectively ambushing him on the scooter presentation.
Later Gomba instructed health department supply chain management (SCM) unit head Celewa Mgijima to use a special five-day procurement provision to implement the tender and to finalise specifications for the units.
Mbengashe failed to warn Gomba against behaving in a manner that prejudged the outcome of the procurement process. He also did not ensure SCM officials were not influenced by Gomba’s remarks.
Instead of immediately exercising his responsibility and challenging Gomba’s instruction to Mgijima, after formal procedures under the Public Finance Management Act and setting the record straight with SCM officials, Mbengashe “resigned himself to the fact that this is just how the MEC operates”, Kroon found.
“The overall impression with which I am left is that [Mbengashe] wanted to just let sleeping dogs lie,” Kroon said.
“He should, right at the beginning, and as early as December 13 2019, have stepped in and firmly reminded the MEC that ‘good fences make good neighbours’.”
It was imperative that “a sharp and bright line” be drawn between the role of the MEC and the HOD.
Any political interference in the operations of the department’s administration was strictly prohibited and unlawful, and by instructing the SCM unit head to follow a procedure for a R10m contract, the MEC broke the rule against a political office-bearer interfering in the domain of the accounting officer. The shortened timeframe could also have benefited a supplier who was part of the pitch to the department, creating the appearance of legitimacy, if Gomba wanted to favour Fabkomp.
But Kroon s ruling also exposes the poor investigation by East London’ SIU forensic investigator Glen Muller, which underpinned the SIU’S findings and which prompted Mabuyane’s action, a point Mbengashe highlighted in his response. He said Muller was “biased and conflicted” and dragged Mbengashe’s name into the issue to strengthen the case against Gomba.
Mbengashe said the negligence findings against him were absurd. He never said the MEC was allowed to influence the SCM process.
Procurement committees were formally constituted with delegated powers under the PFMA and were duty-bound to report any irregularities in writing to the accounting officer.
Once a committee recommended an award to a supplier, the accounting officer could not decline the award, or amend the recommendation.
Arrangements for sanction proceedings will be discussed between the parties this week.